U.S. Bank N.A. v Myrie

[*1] U.S. Bank N.A. v Myrie 2012 NY Slip Op 50328(U) Decided on February 23, 2012 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 23, 2012
Supreme Court, Queens County

U.S. Bank National Association, as Trustee, on behalf of the Holders of TER WIN Mortgage Trust 2006-3, Asset-Backed Certificates Series 2006-3, Without Recourse, Plaintiff,

against

Albert G. Myrie Jr., et al., Defendants.



6061/2008



For the Plaintiff: Rosicki, Rosicki & Associates, P.C., by Kenneth Sheehan and Mitra Paul Singh, Esqs., 51 East Bethpage Road, Plainview, New York 11803

For Defendant Albert G. Myrie Jr.: Law Office of Abel L. Pierre, P.C., 40 Exchange Place, New York, NY 10005

Charles J. Markey, J.

Defendant Myrie previously moved, by order to show cause dated September 30, 2010, to stay the enforcement of the judgment of foreclosure and sale, vacate the judgment of foreclosure and sale, and discharge the notice of pendency, and asserted, among other things, that he had "never been served with a summons and complaint, judgment of foreclosure and sale or any other [*2]legal documents." The motion papers were marked fully submitted on February 10, 2011.

By decision and order dated February 14, 2011, the motion was denied. According to the affidavit of service dated May 17, 2011, a copy of the February 14, 2011 order was served, along with notice of entry, upon counsel for defendant Myrie by regular mail on May 17, 2011.

Upon the foregoing papers, defendant Myrie asserts, among other things, that the prior order was denied because "the bank tricked me into thinking that I would not have to appear" on the adjourned return date of the order to show cause.

To the extent defendant Myrie, in effect, moves to vacate the prior order based upon excusable default, his prior motion was not denied based upon his default in appearing in court on the adjourned return. Rather, the Court, in determining the motion, considered his motion papers and cited to the affirmation in opposition of Kenneth Sheehan, Esq., counsel for plaintiff. Defendant Myrie makes no claim that he served or submitted reply papers which should have been considered by the court. That branch of the instant motion by defendant Myrie which seeks leave to vacate the prior order dated February 14, 2011, on the ground of his excusable default in appearing in Court in support of the prior motion (CPLR 5014[a][1]) is denied as moot.

In addition, to the extent defendant Myrie seeks leave to vacate the prior order on the ground it is the product of fraud, misrepresentation, or other misconduct committed by plaintiff (CPLR 5015[a][3]), he fails to articulate the manner in which he was "tricked" by the bank, or indicate that he would have served reply papers upon plaintiff, but for fraud, misrepresentation, or other alleged misconduct by plaintiff. Myrie has also failed to show that the stipulation entered into between his counsel and counsel for plaintiff, regarding the adjournment of the return date of the prior motion, was violated by plaintiff in any manner. Indeed, counsel for defendant Myrie indicates in his reply affirmation that "defendant" was unaware of the February 10, 2011 court appearance, "due to some logistical and communication mix up." Under such circumstances, that branch of the instant motion which seeks leave to set aside the prior order dated February 14, 2011, pursuant to CPLR 5015(a)(3), is denied.

To the extent defendant Myrie seeks leave to reargue the prior motion, that branch of the instant motion is untimely, having been made more than 30 days after service of the February 14, 2011 order with notice of entry. Myrie has failed to demonstrate that he appealed from the February 14, 2011 order (CPLR 2221[d][3]). Thus, that branch of the motion by defendant Myrie for leave to reargue his prior motion is also denied.

Furthermore, to the extent defendant Myrie seeks leave to renew the prior motion, he has failed to present any new admissible evidence. Defendant Myrie's counsel asserts for the first time in his reply affirmation that the physical description of Chrissi Myrie in the affidavit of service of a copy of the summons and complaint upon defendant Myrie does not match her physical appearance. Such assertion is not based upon the personal knowledge of counsel. The instant motion, therefore, is not "based upon new facts not offered on the prior motion that would [*3]change the prior determination" (CPLR 2221[e][2]). As a consequence, to the extent defendant Myrie, in effect, seeks leave to renew his prior motion, that branch of his motion is denied.

Under such circumstances, the prior order dated February 14, 2011 constitutes the law of the case, and the branches of the motion by defendant Myrie to vacate the judgment of foreclosure and sale and discharge the notice of pendency are denied. The branch of the motion by defendant Myrie to stay any foreclosure sale is also denied.

Although defendant Myrie asserts that a stay is necessary for the purpose of allowing him to consummate a sale of the property to a third party, he has failed to provide a copy of the alleged executed contract of sale. Defendant Myrie additionally has failed to demonstrate that plaintiff is contractually obligated under the terms of the subject mortgage, or any other agreement, to forbear from prosecution of the action pending the completion of a private sale by defendant Myrie, or to consent to any short sale by defendant Myrie to a third-party purchaser.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

February 23, 2012